15-580 Kudishev v. Lynch BIA Page, IJ A078 521 004 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED**  **ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT**  = **S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED**  **WITH THIS**  **COURT, A**  **PARTY MUST**  **CITE EITHER**  **THE FEDERAL**  **APPENDIX OR**  **AN ELECTRONIC**  **DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY**  **OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **3 rd**  **day of May, two thousand sixteen.** 4 5 **PRESENT:** 6 **REENA RAGGI,** 7 **RICHARD C. WESLEY,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **GENNADY KUDISHEV, AKA GENNADI** 13 **KUDISHEV, AKA GENNADY GAVRILETS,** 14 **AKA GENNADIY ANDREYEVICH** 15 **GAVRILETS,** 16 Petitioner **,** 17 18 **v. 15-580** 19 **NAC** 20 **LORETTA E. LYNCH, UNITED STATES** 21 **ATTORNEY GENERAL,** 22 Respondent **.** 23

**_____________________________________** 24 25 **FOR PETITIONER:** Regis Fernandez, Esq., Newark, New 26 Jersey. 27 28 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 292 Assistant Attorney General, Mary 1 Jane Candaux, Assistant Director, 2 Matthew A. Connelly, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of Justice, 5 Washington, D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review is 10

DENIED. 11 Petitioner Gennady Kudishev, a native of Uzbekistan and 12 citizen of the Russian Federation, seeks review of a February 13 19, 2015 decision of the BIA denying his motion to reopen. In 14 re Gennady Kudishev, No. A078 521 004 (B.I.A. Feb. 19, 2015). 15 We assume the parties’ familiarity with the underlying facts 16 and procedural history in this case. 17 We review the BIA’s denial of a motion to reopen for abuse 18 of discretion, “mindful that motions to reopen ‘are 19 disfavored.’” Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 2006) 20 (quoting INS v. Doherty , 502 U.S. 314, 322-23 (1992)). An alien 21 seeking to reopen proceedings may move to reopen no later than 22 90 days after the final administrative decision is rendered. 23 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This 243 limitations period may be equitably tolled to accommodate a 1 claim of ineffective assistance of counsel. See Rashid v. 2 Mukasey , 533 F.3d 127, 130 (2d Cir. 20 08). To decide whether 3 a claim warrants equitable tolling, we engage in a two-step 4 inquiry: first, we determine “whether and when the ineffective 5 assistance ‘[was], or should have been, discovered by a 6 reasonable person in the situation.’ Then, petitioner bears 7 the burden of proving that he has exercised due diligence in 8 the period between discovering the ineffectiveness of his 9 representation and filing the motion to reopen.” Jian Hua Wang 10

v. BIA , 508 F.3d 710, 715 (2d Cir. 2007) (quoting Iavorski v. 11

INS , 232 F.3d 124, 134 (2d Cir. 2000)). The petitioner must 12 demonstrate “due diligence” in pursuing a claim “during the 13 entire period he . . . seeks to toll.” Rashid , 533 F.3d at 132. 14 Kudishev’s petition fails this inquiry. In denying his 15 motion to reopen, the BIA reasoned that Kudishev knew, or should 16 have known, during his removal proceedings “of the possibility 17 of removal to Russia and that his prior counsel waived an 18 application for asylum.” App’x 3. That conclusion is 19 supported by the record. It was clear throughout the 20 immigration court proceedings that Russia was a possible 214 country of removal. During a November 2005 hearing, Kudishev 1 declined to designate a country of removal, and the Government 2 designated Uzbekistan with an alternative to the Russian 3 Federation. It was also clear that Kudishev waived any 4 application for asylum, withholding of removal, and United 5 Nations Convention Against Torture (“CAT”) relief. At the 6 November 2005 hearing, the immigration judge (“IJ”) warned that 7 if Kudishev failed to submit the application form, then the IJ 8 would assume he waived the application. At a February 2006 9 hearing, Kudishev’s attorney confirmed that Kudishev waived the 10 application. And at a December 2008 hearing, the IJ asked 11 Kudishev, “What if you had to go to Russia, the Federation, not 12 Uzbekistan?” Admin. Record 562. Having just described his 13

lack of business connections in Uzbekistan, Kudishev responded: 14 “I think Russia is even more d ire condition. It’s even worse 15 than, than over there. Because in Russia they would, they would 16 just fire people, throw them out to the street with no prospects 17 of getting any work ever.” Id . Thus, given the opportunity 18 to voice a fear of physical harm upon returning to Russia, 19 Kudishev did not, thereby confirming his prior waiver. 20 Finally, the IJ’s December 2010 written decision ordered 215 Kudishev removed to Russia and listed his applications for 1 relief, which did not include CAT relief. On this record, the 2 BIA acted within its discretion in determining that Kudishev 3 did not exercise due diligence between when he should have 4 discovered the purported ineffectiveness (at the latest, in 5

December 2010) and when he filed his motion to reopen (in January 6 2015). See Jian Hua Wang , 508 F.3d at 715. 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our rev iew, the stay of removal 9 that the Court previously granted in this petition is VACATED. 10 Any pending request for oral argument in this petition is DENIED 11 in accordance with Federal Rule of Appellate Procedure 12 34(a)(2), and Second Circuit Local Rule 34.1(b). 13

FOR THE COURT: 14 Catherine O = Hagan Wolfe, Clerk 15